HAMEED AND ANOTHER v. DHARMASIRI AND OTHERS

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HAMEED AND ANOTHER
v.
DHARMASIRI AND OTHERS
COURT OF APFEAL.
WIJETUNGE, J. AND WIJEYARATNE, J.
C.A. APPLICATION No. 1180/86 – D C. KANDY 13880/LMARCH 7, 1990.
Civil Procedure -Code sections 394(2), 398 (1):and 405 ■ Legal representative – Executorde son tort – Substitution of legal representative ol deceased defendant – Vindicatory suit.
When a defendant dies during the pendency of a suit, the suit may be said to be in a stateof suspension. No orders except formal or processual orders can be made. The duty is caston the plaintiff of seeing that the "legal representative" is substituted. The sections leaveit to the plaintiff to apply that a correct "legal representative" is brought on the record. If he• omits to bring the right person on the record, he will have to bear the consequences, asthe proceedings will not bind the true “legal representative".
By judicial interpretation the term “legal representative" in section 394(2) of the CivilProcedure Code has received an extended meaning to include an executor de son tort.Section 405 provides for an ex parte application and it should be by petition and affidavit,so that there can be prima facie proof of the matters stated therein.
The court on being satisfied that there are grounds for substitution should enter the nameof the legal representative on the record in place of such deceased defendant and shallissue a summons (in Form 71 of the Schedule to the Civil Procedure Code) on the legalrepresentative to appear and defend the action.
The person so substituted may object that he is not the legal representative. Suchobjections may be filed separately and an inquiry thereon should be held expeditiously.
Cases referred to :
Dahanayake v. Jayasinghe 71 CLW 112
Sockalingam Chettiar v. Seeman Appuhamy 46 NLR 318, 320
sc
Hameed and Another v. Dharmasiri and Others
411
Sarlin v. James Fernando 63 NLR 34, 41
Thornton v. Velaithan Chetty 40 NLR 157
APPLICATION for revision of order of District Judge of Kandy.
A.K. Premadasa, P.C. with G. Dayasiriand Miss S. Ubeyratne for plaintiff – petitioners.D.R.P. Goonetilleke with N. Liyanage lor added – defendant – respondent.
Cur. adv. vult.
August 23, 1990.
WIJEYARATNE, J.
The plaintiffs-petitioners filed this action against P.G. Mendis Appuhamy(since deceased) as 1st defendant and Sunil Mallikarachchi (2nddefendant-respondent) as 2nd defendant for a declaration of title to theland and building situated at premises Nos. 47 & 47/1, YatinuwaraVeediya, Kandy, on the basis that these premises were let to the 1stdefendant and that the premises were burnt down on 14.7.1983 and thatthe 2nd defendant is in possession of these premises with the approvalof the 1st defendant but without the consent of the plaintiffs-petitioners.
The plaintiffs-petitioners have asked that they be declared entitled tothese premises and the two defendants be ejected therefrom.
They have also averred that the two defendants were wrongfully andunlawfully attempting to put up another building and have prayed for aninterim injunction restraining them from doing so.
The plaintiffs-petitioners filed an amended plaint on 27.9.83 statingthat the subject-matter of the tenancy was completely destroyed by fifeand the tenancy came to an end. They have added an alternative causeof action in the amended plaint and prayed that, in the event of the courtholding that the tenancy between the plaintiffs-petitioners and the 1stdefendant is yet subsisting and the 1 st defendant has sublet the premisesto the 2nd defendant in breach of section I0(2)(a) of the Rent Act, No. 7of 1972, the ejectment of both be decreed on that ground.
The 2nd defendant-respondent and P.G. Mendis Appuhamy objectedto the proposed amended plaint.
On 25.4.1983 the said P.G. Mendis Appuhamy died and the plaintiffs-petitioners sought to substitute his son, the added defendant-respondent
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(P.G. Dharmasiri), in place of the aforesaid deceased 1st defendant(Mendis Appuhamy). The application was supported on 10.5.85 andorder was made to effect the said substitution (as seen by the proceedingsof 10.5.85 which have been marked “X5”). An order was made to issuesummons on the added defendant-respondent for 5.6.85.
Thereafter objections to this substitution were filed, dated 7.8.85, tothe effect that the plaintiff s-petitioners have no right to make the substitutionand that the plaintiffs-petitioners are not entitled to take this step.
An inquiry into these objections was held on 23.6.86 when only legalsubmissions were made. The learned Additional District Judge, by hisorder dated 25.9.86, upheld the objections of the added defendant-respondent holding that he is not the legal representative of the deceased1st defendant, which order the plaintiffs- petitioners seek to revise in thisapplication.
The procedure to be followed is spelt out in sections 398 and 405 of theCivil Procedure Code. The term “legal representative" is defined insection 394(2) of the Civil Procedure Code as meaning an executor, oradministrator or in the case of an estate below the value of Rs. 20,000,the next of kin who have adiated the inheritance.
In the case of Dahanayake v. Jayasinghe (1) it was held that the term“executor" includes an executor de son tort. It was held in that case thatthere was ample evidence that the widow intermeddled with her latehusband’s estate and thereby constituted herself an executor de son tortand she could be substituted as the legal representative of her latehusband who was the defendant.
Any person who intermeddles with the property of a deceased personordoes any other act characteristic of the off ice of executor by performingduties which are normally those of a legal representative and who has notbeen expressly or impliedly appointed by the will or who has not obtainedletters of administration, becomes an executor de son tort, or an executorby his own wrong. This term is equally applicable in the case of anintestacy as in the case of testacy there being no such term known to lawas an administrator de son tort.
Thus it is seen that by judicial interpretation the term “legalrepresentative" in section 394(2) has received an extended meaning.
CA
Hameed and Another v. Dharmasiri and Others (Wijeyaratne, J.)
413
On the death of a defendant the court should bring in the legalrepresentative on the record before proceeding with it.
The suit may be described to be in a state of suspension till then andno orders, excepting formal or processual, can be passed. If the suit isdisposed of without impleading the legal representatives of a deceasedparty, re-trial will be ordered (Commentary on the Code of Civil Procedureby Chitaley and Rao, 7th Edition (1963), Volume III, page 3372).
The object of the application is that the fact of the death of thedefendant is brought to the notice of the court and the court is appraisedas to who are the legal representatives of the deceased.
By these sections the duty is cast on the plaintiff of seeing that the legalrepresentative is substituted in place of the deceased defendant. Thesesections leave it to the plaintiff to apply that a certain person whom he.alleges to be the legal representative be brought on the record. Theplaintiff being dominus litis, it is incumbent on him to see that propersubstitution is effected. If he omits to bring the right person on the record,he will have to bear the consequences as the proceedings will not bindthe true legal representative. If improper substitution is made by theplaintiff, he does so at his own risk.
It is in the plaintiff’s interest to see that this is done expeditiously so thatthe action can be continued as early as possible with a view to obtainingthe relief sought for in the plaint. Section 405 of the Civil Procedure Codehelps him in this respect by providing for an ex parte application in thecase of the death of a defendant.
The application should be made by petition and affidavit. This isessential so that there can be prima facie proof of the matters statedtherein.
Thereupon the court, on being satisfied that there are grounds forsubstitution, should enter the name of the legal representative on therecord in place of such deceased defendant and shall issue a summons(in form 71 of the Schedule to the Civil Procedure Code) to the legalrepresentative to appear and defend the action.
An order nisi or order absolute is not necessary under section 398 readwith section 405 of the Civil Procedure Code. (See the observations ofKeuneman, J. in Sockalingam Chettiar v. Seeman Appuhamy, (2)).
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It has been held in the case of Sarlin v. James Fernando (3) that animproper substitution can nullify a subsequent sale in execution.Basnayake, C. J. at page 41 in the said case stated as follows:-
"The proceedings subsequent to the death of the defendant-appellant have therefore been against persons who in law cannot besubstituted in place of the deceased in the suit. A person who is notentitled to take the place of the deceased defendant-appellant in thesuit and whom the court has no power to appoint to take his place hasno locus standi in judicio."
By the proviso to section 398(1) the person who is made the defendantmay object that he is not the legal representative of the deceaseddefendant or make any defence appropriate to his character as suchrepresentative.
I am of the view that such objections, if any, should be taken up at theearliest opportunity. As laid down in the case of Thornton v. VelaithanChetty (4), the objection that a person is not the legal representative isone that should be taken up and determined in the first instance.
Such objections may be filed separately and inquiry held thereon ashas been done in this case. Such inquiry should be held expeditiously.
The learned counsel for the plaintiffs- petitioners submitted that in thiscase the learned Additional District Judge has not given reasons forholding that the added defendant- respondent cannot be substituted iriplace of the deceased 1 st defendant. He also submitted that the plaintiffs-petitioners could have led evidence, if necessary, to show that the addeddefendant- respondent intermeddled with the estate of the deceased, forwhich purpose an opportunity should have been given to lead evidence.
On a perusal of the order of the learned Additional District Judge dated25.9.86, he has not given reasons for holding that the added defendant-respondent is not the legal representative of the deceased; nor is therematerial for such a contrary finding. Therefore I set aside the order of thelearned Additional District Judge dated 25.9.86.
Or, a reading of the petition and affidavit of the 2nd plaintiff- petitionerdated 7.5.86 filed under section 398(1) of the Civil Procedure Code, thereis sufficient material to satisfy a court of law that there are grounds forentering the name of the added defendant- respondent in the place of thedeceased 1 st defendant.
CA
The Attorney-General, v. Chandran and Another
415
It is averred therein that P.G.Mendis Appuhamy died on or about24.4.85 leaving an estate below Rs. 20,000 in value, that his wifepredeceased him, that the added defendant- respondent is his son, andthat he had adiated the inheritance. The added defendant- respondenthas not placed any evidence or other material to the contrary.
I therefore make order directing that the aforesaid P.G. Dharmasiri (theadded defendant- respondent) be added as the legal representative ofthe deceased 1st defendant and that he be numbered as the 1st addeddefendant.
It is open to him to file an answer under section 398(1) of the CivilProcedure Code and to defend the action. However, he is precluded fromtaking up the position that he is not the legal representative of thedeceased 1st defendant, as the matter has been decided and is nowconcluded.
. The added defendant- respondent will pay the plaintiffs- petitioners thecosts of this application.
WIJETUNGA, J.-1 agree.
Order of District Judge re substitution set aside.
Order tor substitution made.